On the heels of a recently filed lawsuit and a directive issued by Massachusetts' state Board of Registration in Pharmacy, Wal-Mart confirmed that effective March 20, 2006, all of its pharmacies will begin carrying Plan B emergency contraceptives. Wal-Mart first announced, on February 14, that it would begin to stock and sell emergency contraception (EC) at its 44 Massachusetts pharmacies after that state's Board of Registration in Pharmacy voted unanimously to require it to do so. Plan B is a brand name of EC, a high dose of birth control that can prevent pregnancy if taken within 120 hours (5 days) of unprotected sexual intercourse.1

Three Massachusetts women filed the lawsuit against Wal-Mart saying that the retailer violated a state regulation by failing to stock EC pills in its pharmacies. The women filed suit in Suffolk Superior court alleging violations of the state's Consumer Protection Act and seeking a court order that would compel Wal-Mart to stock EC in its Wal-Mart and Sam Club stores across Massachusetts, all of which have pharmacies that currently do not offer the medication.2

The three women also filed a complaint with the state board that regulates pharmacies hoping that the complaint would force the Board of Registration in Pharmacy to decide whether its existing regulations did, in fact, require Wal-Mart to carry EC. Previously, a spokeswoman for the Board had said that it would not take a position on the matter because it had not received a formal complaint.3

The three plaintiffs, Katrina McCarty of Somerville, Julie Battel of Jamaica Plain, and Rebekah Gee of Boston said that they had tried unsuccessfully to fill Plan B prescriptions at Wal-Mart pharmacies in Quincy and Lynn. They said they were told that Wal-Mart does not stock the drug and were referred to a competitor. McCarty and Battel did go to other pharmacies (CVS stores) to have their prescriptions filled.4 McCarty works in the government affairs department at Jane Doe Inc., the Massachusetts Coalition Against Sexual Assault and Domestic Violence, which is supporting the lawsuit. Battel is a nurse midwife, and Gee is an obstetrician/gynecologist who last year helped write legislation to increase access to emergency contraception. “I did this on behalf of my patients,” said Gee, who is completing her residency at Brigham and Women's/Massachusetts General Hospital. “Women shouldn't be refused needed medication.”5

Sam Perkins, a lawyer for the three plaintiffs said, “Wal-Mart apparently thinks it is above the law… Massachusetts pharmacies are required to stock all medications that are commonly prescribed to meet the usual needs of the community”6 and that “no pharmacy chain can take a political agenda and impose it on the people of Massachusetts.”7

Dan Fogelman, a spokesman for Wal-Mart argued the company chose “not to carry [the] product for business reasons.” However, a letter from Wal-Mart attorney John W. Delaney to Perkins told a different story. Delaney said in the letter that the lawsuit had no merit and that the corporation had “long had the corporate policy of declining to make available EC medication, based on, among other things, a view that EC medication is not ‘commonly prescribed' and within the ‘usual needs of the community.”8 He also wrote that if a Wal-Mart pharmacy does not carry a certain prescription, the pharmacist is instructed to refer the customer to a different drugstore9 and that the three plaintiffs had not been harmed by having to go to another store.10

After the Board's ruling, however, the corporation seems to have changed its mind. In a recent press release, Wal-Mart acknowledged that it is currently required to sell the product in Illinois and Massachusetts, and that pressure to introduce similar mandates is building in Connecticut and New York. “We expect more states to require us to sell emergency contraceptives in the months ahead,” said Ron Chomiuk, vice president of Pharmacy for Wal-Mart. “Because of this, and the fact that this is an FDA-approved product, we feel it is difficult to justify being the country's only major pharmacy chain not selling it.”11